Friday, December 21, 2012Last Update: 5:41 AM PT

Post-Katrina Shooting Convictions Upended

(CN) - The 5th Circuit vacated the manslaughter conviction of a former New Orleans police officer who shot a man to death in the aftermath of Hurricane Katrina. David Warren has been serving 309 months in prison after a federal jury convicted him in 2010 of fatally shooting 31-year-old Henry Glover outside a strip mall in the New Orleans suburb of Algiers on Sept. 2, 2005. The officer testified that he fired his gun because Glover was charging at him with what looked like a weapon, but he allegedly did not think he hit Glover. Glover's friend testified that he and others then piled Glover into a passing Chevy Malibu to get him help. The New Orleans Police Department had set up a makeshift emergency center at the nearby Habans Elementary School, but Glover's friends allegedly found little help. They said a group of officers ordered them out of the car at gunpoint, and beat and handcuffed them while Glover lay, likely dead, in the back seat. Two of police lieutenants, Gregory McRae and Travis McCabe, were convicted of trying to cover up Glover's death. They had been tried alongside Warren. The jury found that McRae burned the Malibu containing Glover's corpse, and that he beat the Glover's friends, William Tanner, Bernard Calloway and Edward King. McRae had testified that he decided independently to burn the body as he had seen other corpses rotting around New Orleans in Hurricane Katrina's aftermath and did not want the same for Glover. The trial court sentenced McRae to 207 months in prison. McCabe was found guilty of lying to federal officials during their investigation, but he won an order for a retrial in 2011. The court said "newly discovered evidence casts grave doubt on the criminal conviction." Warren and McRae appealed their convictions, while the U.S. government appealed the order for McCabe's new trial. A three-judge panel from the New Orleans-based 5th Circuit mostly sided with the officers this week. "We hold that, because Warren has demonstrated that he suffered specific and compelling prejudice as a consequence of the District Court's refusal to sever his trial from that of the other defendants, the District Court abused its discretion in denying Warren's repeated motions to sever under Federal Rule of Criminal Procedure 14(a)," Judge Grady Jolly wrote for the panel. Warren argued that the spillover effect from the trial's testimony and evidence biased the jury's consideration as to whether he had acted unlawfully when he shot Glover. "We hold that Warren has met the difficult burden of showing that, as a result of the district court's refusal to sever his trial, he suffered compelling prejudice," Jolly wrote. The court agreed that with Warren that his trial as a sole defendant would have lasted a mere three days. "Instead of a three-day trial focused only on evidence and testimony concerning the events underlying the allegations in counts one and two - whether Warren unlawfully shot Glover in the shopping center parking lot - Warren was subjected to sit before the jury for a trial lasting a month, in which sordid evidence and testimony was introduced about the beatings of King and Tanner at Habans Elementary School, the disposal and burning of Tanner's car and Glover's body; and, through the trial of McCabe relating to the cover-up of the Glover shooting through the alleged fabrication of the police report, in which the government sought to show that a report tending to exonerate Warren in the Glover shooting was a contrivance and fraud," Jolly wrote. Warren will get a new trial on all the charges, according to the ruling. The panel also vacated McRae's conviction for denying Glover's family the right to access the courts. This conviction held that McRae made it difficult for Glover to pursue a wrongful-death or civil rights lawsuit by burning Glover's body. The appellate panel was unconvinced. "Although the government's evidence introduced various of Glover's survivors - a sister, a mother, and a child, to name a few - it provided no indication that any survivor had any intention to sue," Jolly wrote. "The jury cannot have rationally concluded that someone lost a claim without evidence that someone intended to bring a claim in the first place," he added. McRae's other convictions remain in tact, but he will get a new sentencing hearing. The panel affirmed the retrial order for McCabe.